DATE: December 18, 1992
CASE NO. 88-ERA-1
IN THE MATTER OF
W. ALLAN YOUNG,
COMPLAINANT,
v.
PHILADELPHIA ELECTRIC COMPANY,
AND E. H. HINDS COMPANY,
RESPONDENTS.
CASE NO. 87-ERA-ll
IN THE MATTER OF
W. ALLAN YOUNG,
COMPLAINANT,
v.
PHILADELPHIA ELECTRIC COMPANY,
RESPONDENT.
CASE NO. 87-ERA-36
IN THE MATTER OF
W. ALLAN YOUNG,
COMPLAINANT,
v.
PHILADELPHIA ELECTRIC COMPANY,
RESPONDENT.
[PAGE 2]
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
AND ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT WITH PREJUDICE
Before me for review are the Recommended Decision and Order
(R.D. and O.) and the Order Approving Settlement of the
Administrative Law Judge (ALJ) in these cases arising under
Section 210 of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988). Before the hearing in these
consolidated cases, the ALJ recommended approval of the settlement
agreement and stipulation of dismissal submitted by Complainant
and Respondent E.H. Hinds Company in Case No. 88-ERA-l. The ALJ
recommends that the complaints filed against Respondent
Philadelphia Electric Company (PECO) in these cases be dismissed
because, although Complainant had engaged in protected activity,
the evidence of record did not support a finding that PECO had
actual knowledge of that fact. PECO's action, therefore, could not
have been motivated by the protected activity and it would not be
prohibited under the ERA.
Upon review of the record in these cases, I agree with the
ALJ's recommendation to dismiss the complaints. While the record
and applicable law fully support the ALJ's conclusion that
Complainant failed to establish a prima facie case of
discriminatory action, for the reasons discussed infra, I
am dismissing the complaints under a different rationale.
BACKGROUND
In September 1984, John Austin, a modification superintendent
at PECO's Peach Bottom Atomic Power Station, received some
information that Complainant had displayed behavior which
reflected untrustworthiness and unreliability while working for
another contractor at Peach Bottom. R.D. and O. at 5; Transcript
(T.) at 62-64. In late September or early October, Austin
received a memorandum from the superintendent of that contractor
which tended to further substantiate Complainant's unreliability.
R.D. and O. at 6; T. at 97-98. On October 29, 1984, Austin met
with Samuel Tharpe, Chief Security Coordinator at Peach Bottom,
and Richard Fleischmann, plant superintendent, to discuss whether
Complainant should be excluded from the site. R.D. and O. at 6;
T. at 121-22, 158-59. On that date, as a result of the meeting,
Tharpe changed Complainant's security classification to a Code 9
which prevented his unescorted access to Peach Bottom until
further investigation. R.D. and O. at 6-7; T. at 160-61.
On October 15, 1985, Complainant was referred for a
position with Hinds at Peach Bottom but was denied clearance
[PAGE 3]
to enter the work site by PECO security. R.D. and O. at 7.
Complainant was referred to a position at Peach Bottom with
Catalytic on October 14, 1986, but was removed from a
training class because he lacked a security clearance and
thus was not eligible for employment. Complainant was again
referred to work for Catalytic on May 7, 1987, but was unable
to obtain a security clearance, was required to remain in the
security area, and was eventually laid off. On June 15,
1987, after conducting a review of Complainant's employment
history, PECO found a sufficient basis to remove
Complainant's Code 9 security classification. Id.
Complainant alleges in these cases that he was discriminatorily
denied access to work. Id. at 2. The ALJ initially
concluded that PECO is an employer and Complainant an employee
within the meaning of the ERA. Id. at 8. Next, the ALJ
found that Complainant engaged in protected activity and was
subjected to adverse action by PECO. Complainant failed to prove,
however, that the persons responsible for withdrawing his
unescorted access to the work site (Fleischmann, Tharpe, and
Austin) had any prior knowledge of his safety complaints.
Id. at 9. The ALJ therefore concluded that Complainant had
failed to establish a prima facie case of discriminatory action.[1]
DISCUSSION
A. Settlement of Complaint Aqainst E. H. Hinds Company
The settlement agreement appears to encompass the settlement
of matters arising under various laws, only one which is the ERA.
For the reasons set forth in Poulos v. Ambassador Fuel Oil
Co., Case No. 86-CAA-l, Sec. Ord., Nov. 2, 1987, slip op. at
2, I have limited my review of the agreement to determining
whether its terms are a fair, adequate and reasonable settlement
of Complainant's allegation that Respondent E. H. Hinds Company
violated the ERA. 42 U.S.C. § 5851(b)(2)(A).
Upon review of the terms of the agreement and the record in
this case, I find that the agreement is fair, adequate and
reasonable, and therefore, I approve the agreement and
accompanying stipulation of dismissal. Accordingly, the complaint
in Case No. 88-ERA-l is DISMISSED with prejudice as to E. H. Hinds
Company, as provided in the settlement agreement.
B. Complaints Against PECO[PAGE 4]
To establish a prima facie case of discriminatory action, the
complainant must show that he engaged in protected activity of
which the respondent was aware and that the respondent took
adverse action against him. The complainant must also
present evidence sufficient to at least raise the inference that
protected activity was the likely motive for the adverse action.
Jain v. Sacramento Mun. Util. Dist., Case No. 90-ERA-l,
Sec. Dec., Apr. 2, 1992, slip op. at 2; Dartey v. Zack Co.,
Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-8.
The ALJ found that Complainant had engaged in protected
activity and that Respondent took adverse action against him, but
concluded that Fleischmann, Tharpe and Austin had no knowledge of
Complainant's protected activity when the decision was made to
change his security clearance. A review of the record, however,
establishes, as argued by Complainant, see Complainant's
brief (Com Br.) at 6, 18, that Tharpe had knowledge of
Complainant's protected activity in May 1984. Tharpe testified
that on May 18, 1984, a former employee of Catalytic told him that
Complainant had worked at TMI and was involved in suing the
Nuclear Regulatory Commission and two other companies for
overexposure. T. at 146-47. This testimony is corroborated in a
memorandum by Robert Deneen, PECO's Director of Security, T. at
272, in which he reports a conversation with Tharpe to the same
effect. [2] See Complainant's Exhibit 3. I
therefore conclude that Tharpe was aware of at least some of
Complainant's protected activity prior to the adverse action being
taken. [3]
[PAGE 5]
In determining if a prima facie case has been
established, temporal proximity between the protected
activity and the adverse action may be sufficient to support
the inference that the protected activity was the motivation
for the adverse action. Nichols v. Bechtel Constr.,
Inc., Case No. 87-ERA-0044, Sec. Dec., Oct. 26, 1992,
slip op. at 12. Where, however, a significant period of
time elapses between the time at which the respondent is
aware of the protected activity and the time of the adverse
action, the absence of a causal connection between the
protected activity and the adverse action may be
sufficiently established. Shusterman v. Ebasco Serv.,
Inc., Case No. 87-ERA-27, Sec. Dec., Jan. 6, 1992, slip
op. at 8-9.
In the instant case, Tharpe was aware of Complainant's
protected activity in May 1984 and no adverse action was taken
until October 1984. In view of the significant period of time
between Tharpe's awareness of the protected activity and the
adverse action, and considering that Austin, the individual who
initiated the adverse action, T. at 158-59, was not at that time
aware that Complainant had engaged in protected activity, I
conclude that the evidence is insufficient to raise the
inference that protected activity was the likely motive for
the adverse action. Complainant has therefore failed to
present a prima facie case of discriminatory action based on
his protected activity. [4]
Accordingly, the complaints against PECO in these cases are
DISMISSED.
SO ORDERED.
LYNN MARTIN
Secretary of Labor
[PAGE 6]
Washington, D.C.
[ENDNOTES]
[1] The ALJ also found that the evidence of record clearly
supports PECO's position that Complainant's past work record made
his reliability and trustworthiness suspect and it was thus
compelled to alter Complainant's security status to maintain the
safety of the facility and remain in compliance with the Nuclear
Regulatory Commission's regulations. R.D. and O. at 9.
Dec., Apr. 2, 1992, slip op. at 2; Dartey v. Zack
Co., Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip
op. at 7-8.
[2] Tharpe also testified that in May 1984 he was not aware
of any claims that Complainant had before the Department of Labor
or the NRC or any complaints made to Hake Company, GE, GAPCO or
PECO regarding ALARA (as low as reasonably achievable) practices
or radiation shielding practices at Peach Bottom in 1983 or 1984.
T. at 234. This testimony does not contradict Tharpe's prior
testimony as it involves protected activity at Peach Bottom
whereas the earlier testimony concerns protected activity at
PECO's TMI facility.
[3] The record shows that, prior to the change in
Complainant's security status, Austin knew only that Complainant
had filed a complaint against Hake Company with the Department
of Labor, but there is no indication that Austin knew it involved
protected activity. See T. at 99-100. Austin testified that he
assumed that case was based upon Complainant's dismissal for
"unfair labor practices." He added that he learned that
Complainant's claim against Hake involved protected activity the
week before the hearing. T. at 112. With respect to the
complaint against GAPCO in 1984, Austin stated that he became
aware that it involved protected activity in 1987. The record
fails to show that Fleischmann had any prior knowledge of
Complainant's protected activities.
[4] In view of my conclusion that Complainant failed to
establish a prima facie case, I need not address whether PECO properly
classified him as a security risk. See Com. Br. at 25, 30.
